1.2: Purpose and intention of these rules
1.7: Interpreting these rules
5.3: Modification or waiver of this Part
5.41: Medical examinations
5.42: Options during medical examination
5.43: Payment of costs of medical examinations

Case Summary

This Decision consolidated two Actions which dealt with the same issues. In both Actions the Plaintiffs opted to videotape medical examinations which were conducted by medical experts chosen by the Defendants. The Plaintiffs in both Actions provided the videotapes to counsel for the Defendants, but sought to disallow the examining expert doctors the ability to review the videotapes prior to completing their reports. Justice Read considered whether Rule 5.43 permitted the Plaintiffs’ restriction on the use of the video. Her Ladyship considered the applicable Rules and noted that Foundational Rules 1.2 and 1.7 should be applied to interpret the other Rules in a manner which would facilitate the fair and just resolution of the claims in a cost effective and timely way. Further, Her Ladyship stated that Rule 5.3 clearly provided that the Court retained discretion to modify or waive provisions of the relevant Rules where so warranted. The Plaintiffs in both Actions argued that Rule 5.43(3) should be interpreted restrictively, and that Rule 5.43 was remedial and only benefitted the Plaintiffs. The Defendants argued that it would be inherently unfair to disallow the examining medical professional from reviewing a video recording of their own assessment if it existed. The Defendants conceded that there were restrictions set out in Rule 5.43(4), but strict restrictions on dissemination of video recordings would effectively reduce the number of available experts who would be willing to complete medical reports. The Defendants argued that allowing the medical expert to verify the video was consistent with the proper interpretation of Rule 5.43 and with the general purpose and intention of the Rules.

Read J. observed that the new Rules mark a change from the former Rules which were silent on whether a medical examination could be video recorded. Justice Read noted that, despite the significant change with respect to the availability of a video recording, Rules 5.41, 5.42 and 5.43 are similar to the language of former Rule 217; the case law interpreting the former Rule was therefore still applicable. However, the new Rules are silent about what use a party may make of the video once available. Her Ladyship concluded that the Foundational Rules suggested an interpretation of Rule 5.43 which would permit a Defendant’s expert to review the video recording prior to finalizing their expert’s report, and which permitted the Defendants counsel to review the recording as well. The new Rules require the Plaintiff to provide the Defendant with a copy of the videotape “as soon as practicable” which was indicative that the Defendant should be permitted to use the video recording. Read J. agreed that providing the video recording to the Defendants was consistent with the Foundational Rules which require open and honest communication between the parties to encourage settlement. “Trial by ambush” is to be avoided. In the result, the medical examiners’ requests to review the video recording were reasonable, and since the requests could be accommodated in a way which was not contrary to the Rules, the video recording should be provided. Read J. commented that the video recordings were sensitive, but, the new Rules did not stipulate that the video recordings needed to be filed with the Court. The Plaintiffs’ Application was dismissed.

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